Jury should hear Ed Pawlowski's own words as evidence of innocence, lawyer argues

CAMERON HART / THE MORNING CALL

Allentown Mayor Ed Pawlowski listens as his lawyer Jack McMahon speaks to the media after a preliminary hearing at the United States Courthouse in Philadelphia last July.

Allentown Mayor Ed Pawlowski listens as his lawyer Jack McMahon speaks to the media after a preliminary hearing at the United States Courthouse in Philadelphia last July. (CAMERON HART / THE MORNING CALL)

Jurors in Allentown Mayor Ed Pawlowski’s trial on public corruption charges should be allowed to hear secret recordings that demonstrate his state of mind and support his innocence, his lawyer argued in a court filing Monday.

Defense attorney Jack McMahon was responding to a request by prosecutors this month to exclude recorded statements of Pawlowski during the trial, which is scheduled to start next month. The U.S. Attorney’s Office said it plans to use Pawlowski’s pre-arrest interview and secretly recorded conversations between Pawlowski and codefendants Jim Hickey and Scott Allinson during the trial, but argued that Pawlowski cannot play recordings of his own statements because they amount to hearsay, and it would be as if he was testifying without being subject to cross-examination.

Pawlowski is accused in a 54-count indictment of conspiring to trade campaign contributions for city contracts and favors in City Hall. Allinson is charged with conspiracy to commit bribery and federal program bribery for allegedly soliciting donations to Pawlowski’s campaigns in exchange for legal work for Allinson’s law firm. Hickey pleaded guilty last week to one count of honest services wire fraud in the Allentown case and one count of honest services mail fraud in a related case involving former Reading officials.

McMahon writes the FBI’s three-year investigation, including wire taps and listening devices, produced a “virtual library of conversations into the workings and machinations of Mayor Pawlowski and those around him.” Those recordings, McMahon claims, are full of statements that support Pawlowski’s innocence, demonstrate that he did not intend to commit crimes and show Pawlowski is not who prosecutors allege.

“If the government is not being true to its obligation to seek the truth, then it’s perfectly understandable they want to suppress the best evidence in the whole world of Mayor Pawlowski’s mindset — his own words,” McMahon wrote.

McMahon cites as an example Pawlowski’s recorded response to a mid-2015 suggestion by Mike Fleck, his friend and campaign adviser, that they seek campaign contributions by requesting donations from potential city vendors before awarding contracts, rather than afterward.

Pawlowski’s responses also included, “I don’t like that approach at all, to be honest with you, I just don’t like it,” and “McCord went to jail for strong-arming people; that’s why I don’t like what you were suggesting at all.”

McCord pleaded guilty in 2015 to two counts of extortion for demanding campaign contributions from people seeking state contracts.

The motion cites other examples of Pawlowski’s statements that McMahon argues show the mayor was opposed to “crossing the line.” But the legal document doesn’t provide specifics about when Pawlowski made them or in what context.

McMahon argues that the U.S. attorney’s bid to keep Pawlowski’s own statements out of the trial is overly broad and that the court must rule on each statement, considering whether they are, in fact, hearsay. He argues that a statement like “tell the truth” is admissible because it is not an assertion of fact. McMahon also argues that federal court rules on evidence allow statements that show the speaker’s state of mind.

In the filing, McMahon also objects to the U.S. Attorney’s request for the court to bar arguments that corruption related to campaign contributions is so widespread Pawlowski and Allinson should not be blamed. He notes that the case includes statements from Fleck including, “Ed has never done anything wrong,” and “he’s as straight as they come.”

“With these statements emanating, with many others, from the mouth of the government’s main witness, Mike Fleck, it would be pretty ridiculous to argue ‘everybody else is doing it’ when the government’s evidence overwhelmingly shows that Mayor Pawlowski never did,” McMahon wrote.

The trial is scheduled to begin Jan 16 with jury selection in Philadelphia and the rest of the trial to follow in Allentown.